To date, many important threads of information privacy research have developed, but these threads have not been woven together into a cohesive fabric. This paper provides an interdisciplinary review of privacy-related research in order to enable a more cohesive treatment. With a sample of 320 privacy articles and 128 books and book sections, we classify previous literature in two ways: (1) using an ethics-based nomenclature of normative, purely descriptive, and empirically descriptive, and (2) based on their level of analysis: individual, group, organizational, and societal.

Based upon our analyses via these two classification approaches, we identify three major areas in which previous research contributions reside: the conceptualization of information privacy, the relationship between information privacy and other constructs, and the contextual nature of these relationships.

As we consider these major areas, we draw three overarching conclusions. First, there are many theoretical developments in the body of normative and purely descriptive studies that have not been addressed in empirical research on privacy. Rigorous studies that either trace processes associated with, or test implied assertions from, these value-laden arguments could add great value. Second, some of the levels of analysis have received less attention in certain contexts than have others in the research to date. Future empirical studies-both positivist and interpretive--could profitably be targeted to these under-researched levels of analysis. Third, positivist empirical studies will add the greatest value if they focus on antecedents to privacy concerns and on actual outcomes. In that light, we recommend that researchers be alert to an overarching macro model that we term APCO (Antecedents → Privacy Concerns → Outcomes).

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Information privacy research: an interdisciplinary review

American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.

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Plea Bargaining Outside the Shadow of Trial

Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of debiasing through law.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID897553_code170891.pdf?abstractid=897553&mirid=2

The Law of Implicit Bias

For multiple reasons, deliberating groups often converge on falsehood rather than truth. Individual errors may be amplified rather than cured. Group members may fall victim to a bad cascade, either informational or reputational. Deliberators may emphasize shared information at the expense of uniquely held information. Finally, group polarization may lead even rational people to unjustified extremism. By contrast, prediction markets often produce accurate results, because they create strong incentives for revelation of privately held knowledge and succeed in aggregating widely dispersed information. The success of prediction markets offers a set of lessons for increasing the likelihood that groups can obtain the information that their members have.

Deliberating Groups Versus Prediction Markets (Or Hayek's Challenge to Habermas)

Congress has come close to a drive-by rewrite of sentencing law, and a sentencing revolution may still be in the works. On April 10, 2003, Congress passed the PROTECT bill (popularly known as Amber Alert), which creates a national notification system for child kidnappings. On March 26, while the bill was pending, the House of Representatives passed the Feeney Amendment to the bill. The original amendment was an unprecedented attempt by Congress to rewrite the Sentencing Guidelines by itself without the input or expertise of the Sentencing Commission. The House-Senate conference committee narrowed the amendment, limiting many of its changes to child pornography and child sex cases. The revised amendment nonetheless changes the Sentencing Guidelines substantially, and it instructs the Sentencing Commission to make many more changes within the next six months. The likely result is many fewer Guideline departures, less judicial discretion, and more prosecutorial control. The losers are defendants and judges, and the winners are prosecutors. Prosecutorial leverage to plea bargain will be at an all-time high, resulting in fewer trials, more bargains, and higher sentences. Judges used to check prosecutorial harshness, but now they are increasingly powerless unless prosecutors deign to grant leniency. Part I of this article surveys the scope of the Feeney Amendment, emphasizing the breadth of its changes and how far it reaches beyond child-sex cases. Part II explores how the Feeney Amendment shifts power from district judges to prosecutors. While Congress's desire to reduce sentencing departures is understandable, an evenhanded approach should regulate not only judicial leniency, but also prosecutor-initiated departures. The result is even more imbalance in plea-bargaining power. Part III considers Congress's directives to the Sentencing Commission. Congress has lost trust in the Commission, which led it to rewrite sentencing law on its own without awaiting the Commission's expertise. The result is a blunderbuss solution to the narrower problems caused by a subset of judges. I hope that the Commission will respond by constraining prosecutorial as well as judicial discretion. If however the Commission continues on the present course, it will skew the already lopsided balance of power even more.

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The Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea Bargain

Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed that “ours ‘is for the most part a system of pleas, not a system of trials.’” Now the big question is which institutions can and will ameliorate poor defense lawyering retrospectively or prospectively. The upshot, I predict, will depend on semiprivate ordering: few reversals in court, but much more prospective extrajudicial reform. Lafler and Frye will not cause courts of appeals to invalidate many convictions for constitutional error. Courts are poorly equipped to remedy poor lawyers, particularly as plea bargaining creates little record and judges are reluctant to reverse final judgments. Moreover, judges cannot fix the massive underfunding and overwork that plague indigent defense counsel. But Lafler and Frye will probably have much bigger effects indirectly, in prompting solutions beyond the courts. Plea bargaining’s semiprivatized justice is best suited to semiprivatized remedies and reforms, backstopped by judges but driven by other actors. Other actors have the incentives and power to achieve, prospectively and flexibly, much that after-the-fact judicial review cannot. In the real world of plea bargaining, the parties’ stances are no longer antagonistic. Counterintuitively, even prosecutors and defendants have strong incentives to collaborate in explaining, promoting, and bulletproofing plea bargains.

Incompetent Plea Bargaining and Extrajudicial Reforms

In Blakely v. Washington (2004), the Supreme Court held that any fact that raises the maximum sentence that a judge may impose by law must be found by a jury, not a judge, beyond a reasonable doubt. Blakely raises far more questions than it resolves. In this limited space, I address five clusters of issues. Part I discusses how far Blakely is likely to go, and in particular whether it reaches the Federal Sentencing Guidelines. Part II addresses a host of transitional issues, especially what is left of the Federal Guidelines if Blakely applies to them. Part III discusses possible Blakely fixes or patches. Part IV considers briefly how plea bargaining might look different in a post-Blakely world. Finally, Part V muses on some of the fascinating jurisprudential issues raised by Blakely, such as the tension between formalism and pragmatism and the role of 18th-century history in our 21st-century world.

Blakely's Federal Aftermath

In Apprendi v. New Jersey, the Supreme Court of the U.S. required, at a minimum, that juries find beyond a reasonable doubt any fact that increases a defendant's statutory maximum sentence. This watershed decision broke sharply with two centuries of judicial discretion to find facts at sentencing under lower standards of proof. Apprendi left open large questions about its scope: would it change indictment and plea procedure? Would it be retroactive? Would Apprendi errors be harmless? Would Apprendi invalidate judicial mandatory minimum sentences or sentencing guidelines? Over the last three years, state courts have struggled to answer these questions. And they have by and large reached an unusual consensus: Apprendi should extend no further than its narrow holding requires, limiting only facts that raise statutory maximum sentences. This piece canvasses this development and asks why it developed this way. State courts have limited Apprendi not simply because they follow the Supreme Court in lock step or because they are mindless bastions of conservatism. The underlying lesson is that the state courts saw Apprendi's errors and reacted to limit them. They remained faithful to Apprendi's core holding, but they brought their practical experience to bear in damage control by extending it no further. A consensus developed that Apprendi was wrongly decided and should go no further than it must. This brings out a new point about federalism. States are often praised as laboratories of experimentation, going beyond federal minima. But here the process worked well in reverse: the Supreme Court went too far, and the states broke the expansion of what they rightly saw as a disruptive mistake. The moral of the story is that state courts are valuable participants in our cooperative federalism of criminal procedure as much for what they refrain from doing as for what they do.

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Apprendi in the States: The Virtues of Federalism as a Structural Limit on Errors

The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.

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Stephanos Bibas

Papers

The Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea Bargain

Incompetent Plea Bargaining and Extrajudicial Reforms

Blakely's Federal Aftermath

Apprendi in the States: The Virtues of Federalism as a Structural Limit on Errors

Engaging Capital Emotions